Sutton v. Chenault

• Decision Date: 31 May 1855
• Docket Number: No. 1.,1.
• Parties: Francis S. Sutton, plaintiff in error. vs. John N. Chenault, defendant in error.
• Court: Georgia Supreme Court

18 Ga. 1

Francis S. Sutton, plaintiff in error. vs. John N. Chenault, defendant in error.

No. 1.

Supreme Court of the State of Georgia

MAY TERM, 1855.

MAY TERM, 1855.

Caveat, &c. in Lincoln Superior Court. Tried before Judge Andrews, October Term, 1854.

The questions made in this case arose upon a caveat to the will of George N. Chenault, propounded for probate as to the per-sonalty of the decedent. The will was dated 16th February, 1850. The decedent died 13th October, 1853. The will was attested by one witness, who testified that the testator stated that he thought two other witnesses were necessary, and named two individuals whom he intended to procure as witnesses. The decedent said, at the time, that that was his will. The will was caveated on the grounds—1st. That it was unfinished, and so considered by testator. 2d. That it was not attested as required by the Act of the Assembly of 1851—\'2, requiring wills of personalty, after the 1st June, 1852, to be executed with the same solemnities required for bills conveying real estate.

Upon the trial, the Court sustained both the grounds stated in the caveat, and so charged the Jury. Upon this charge error is assigned.

Irvin & Barnett, for plaintiff in error.

Reese; Toombs; T. W. Thomas, for defendant in error.

By the Court.—Starnes, J. delivering the opinion.

On the 16th day of February, 1850, the last will and testament of George S. Chenault, which is now before us, was executed—one witness only attesting the same. On the 21st day of January, 1852, an Act was passed by the Legislature of this State, requiring that from and after the 1st day of June, 1852, all wills and testaments of personal property should be attested by three or four credible witnesses, and declaring that all laws of force in this State prescribing the mode of proof as to devises of real estate, should be extended to wills of personal property.

On the 30th day of October, 1852, George S. Chenault died, and the instrument now under consideration has been offered for probate, as a testamentary disposition of his pergonal estate.

The question presented by this state of facts is, whether ornot the Act just mentioned is to regulate the mode of proof as to this instrument; that is to say, whether it is to be controlled by the law, as it existed at the execution of the will, or at the death of the testator.

In similar cases, there seems to have been some conflict of opinion among Judges.

In the case of Gilmore vs. Shorter, (2 Mod. 310,) where a special verdict was found upon the Statute of Frauds, which enacts, that from and after the 24th day of June, in the year 1677, no action shall be brought to charge any person upon any agreement made in consideration of marriage, &c. unless such agreement be in writing; and the case being upon a bare promise, without writing, judgment was given for the plaintiff, as "it could not be presumed that the Act had a retrospect to take away an action to which the plaintiff was then entitled; for if a will had been made before the 24th day of June, and the testator had died afterwards; yet, the will had been good, though it had not been in pursuance of the Statute."

The case of Ashburnham vs. Bradshaw (7 Mod. 239,) was upon a devise made before the Statute of George II. avoiding devises to charitable uses. The testator died after the Statute was passed. Ten out of the twelve Judges held that the land would still pass under the will; but they gave no reasons for their opinions.

And in the case of Downs vs. Townsend, (Ambler, 290,) Lord Hardwicke is reported to have said, that "the general rule as to...